Director of Public Prosecutions v Yates
[2021] VCC 1094
•2 August 2021
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-20-01611
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| BEVAN ANDREW YATES |
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JUDGE: | HIS HONOUR JUDGE D SEXTON | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 30 April 2021 | |
DATE OF SENTENCE: | 2 August 2021 | |
CASE MAY BE CITED AS: | DPP v Yates | |
MEDIUM NEUTRAL CITATION: | [2021] VCC 1094 | |
REASONS FOR SENTENCE
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Subject:Criminal Law
Catchwords: Aggravated Burglary; Common Law Assault
Legislation Cited: Disability Act 2006; Sentencing Act 1991.
Cases Cited:Hogarth v R (2012) 37 VR 658; Bugmy v R (2013) 249 CLR 571; DPP v Drake [2019] VSCA 293; Douglas v R; Albone v R (1995) 56 FCR 465; R v Verdins (2007) 16 VR 269; Worboyes v R [2021] VSCA 169
Sentence:Total effective sentence of 15 months’ imprisonment.
Community Correction Order of 2 years.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr M. Roper | Solicitor for the Office of Public Prosecutions |
| For the Accused | Mr C. Wareham (30 April 2021) Mr D. Thomas (2 April 2021) | Victorian Aboriginal Legal Service |
HIS HONOUR:
Introduction
1Bevan Andrew Yates, you have pleaded guilty to one charge of aggravated burglary which carries a maximum penalty of 25 years’ imprisonment, and one charge of common law assault which carries a maximum penalty of five years’ imprisonment.
2You have also admitted your criminal history.
Circumstances of Offending
3The circumstances of your offending were set out in the Summary of Prosecution Opening on Plea dated 4 February 2021. That document sets out the factual basis of the offending for which you will now be sentenced.
4Your offending can be briefly summarised.
5At the time of your offending, you were 33 years of age and residing at a property in Merbein, near Mildura. Your victim in this matter, Stephen Lord, lived alone at his property in Avocado Street, Mildura. He was then aged 60 and suffered from a number of health ailments, including type 2 diabetes, high blood pressure, anxiety and a degenerative back condition – all of these ailments making him vulnerable. Close friends regularly checked on him at his home.
6At about 7.45 pm on Monday 31 August 2020, you attended at Mr Lord’s property along with your co-offender, Ostynn Sutherland, then aged 24. Mr Sutherland and Mr Lord were known to each other through a mutual acquaintance. Mr Sutherland was wearing a black hoodie and a pull-up mask, which covered the bottom part of his face.
7You both approached and knocked on Mr Lord’s front door. Mr Lord, assuming it was a friend coming to check on him, told you to both come in. You both entered through an unlocked door and walked into the lounge room, where Mr Lord was sitting in his recliner chair. Not recognising either of you, Mr Lord yelled at you both to leave. Mr Lord opened the front door and you both left the property, moving to the front yard. Mr Lord also went to the front yard to retrieve his dog.
8At this time, both you and Mr Sutherland took offence to something Mr Lord said whilst you were outside, which you perceived to be a racial slur, and you both became enraged. You both began yelling and throwing items towards Mr Lord, including a birdbath from the front yard.
9Mr Lord retreated inside his house, closing the front door. You then kicked or pushed the front door from its hinges, forcing your way back into the house. Your conduct in this regard forms the basis of Charge 1 on the indictment, aggravated burglary, by entering as a trespasser with an intent to assault a person then present, with you knowing or being reckless as to whether or not a person was then so present.
10
Mr Lord stumbled back towards his recliner chair, and you then punched him to the right side of his head two or three times. Your conduct in this regard forms the basis of Charge 2 on the indictment, common law assault of Mr Lord.
Mr Sutherland was also inside the house in the lounge room during this assault, but took no part in it. He ultimately pleaded guilty to the offence of trespass for his role in this incident, and received a sentence of 23 days’ imprisonment at Mildura Magistrates' Court on 8 December 2020. When Mr Lord was able to activate an audible alarm on his mobile phone, which notifies police of an emergency, you both fled from the house.
11As a result of being assaulted, Mr Lord sustained redness and swelling to the right-hand side of his face. He was very distressed from the incident and was treated by paramedics at the scene. Mr Lord had CCTV cameras at his address, which captured the incident, enabling police to subsequently identify you.
12You were arrested approximately one week later on 7 September 2020 and interviewed at the Mildura police station. Amongst other things, you indicated to police that you just went around to the property to buy some ‘choof’ or cannabis, and that you did not know the occupant. You said:
'Shit just started happening and I just freaked out … I don’t like hanging around people’s house when I’m getting choof, especially when I’m schitzing out because I’ve ran out of choof and that … When I went outside, I thought hang on a minute my money, so I went back and this fella had closed the door … I tried to open the door and pushed it and got the money and just took off … We didn’t go there to hurt someone for the fun of it, you know, that’s not me … There was no assault, at all, because we both walked in there empty handed, we had no weapons, all we had was money. (sic)'
13You were remanded in custody and charged on this date, that is 7 September 2020, and have been in custody ever since. A total of 329 days.
Victim Impact
14Your victim, Mr Lord, completed a Victim Impact Statement on 4 December 2020 (Exhibit 2), and that statement was read at your plea hearing by Mr Roper, who appeared on behalf of the prosecution. Clearly, Mr Lord was a vulnerable individual at the time of your offending.
15In his heartfelt Victim Impact Statement, Mr Lord outlines the physical, emotional and financial impacts of your offending upon him. Since being assaulted by you, Mr Lord indicated that his back and neck problems are '10 times worse than they were'. He describes 'constant pain, migraines and dizziness'. He referred to his back pain being so bad that he now needs to walk with a walker inside the property. He also referred to a loss of mobility, which has necessitated a full-time Carer to assist him with household chores.
16Mr Lord referred to the assault taking away his independence. He stated:
'The assault and invasion has contributed to my low self-confidence. I rarely go out, really I only go to the supermarket and to my sister’s house. I don’t feel safe out or comfortable in my own home. It makes me feel depressed.'
17Mr Lord also referred to the impact on his ability to enjoy various social activities as a result of your offending.
18Clearly, your offending has had a substantial adverse impact upon your victim. Victim Impact Statements are an important means through which victims of crime can meaningfully participate in the sentencing process, by informing the court of the often catastrophic and far-reaching consequences of offending upon them. In formulating an appropriate sentence in your case, I have taken into consideration, as one of the relevant sentencing factors, the Victim Impact Statement of your victim, Mr Lord.
Nature and Gravity of Your Offending
19The gravity of your offending is reflected in the relevant maximum penalties, 25 years’ imprisonment for aggravated burglary, and five years’ imprisonment for common law assault. In company with another, you forcibly entered the home of your vulnerable victim in the evening, and then physically assaulted him. Your claim that you heard your victim make a racial slur which you perceived to be directed at you provides no justification whatsoever for your deplorable actions.
20With regards to the circumstances in which you entered the property, I regard your actions as representing a concerning example of the crime of aggravated burglary. However, I accept that your actions fell short of the type of confrontational aggravated burglary referred to in the well-known decision of Hogarth v R.[1] In Hogarth, and the decisions that have followed it, the particularly egregious species of confrontational aggravated burglary invariably involves multiple offenders, weapons, and some premeditated motivation due to some previous conflict or grievance. In contrast, I accept that your actions in forcing your way into the property were not premeditated, but were likely an impulsive overreaction due to a perceived slur, and occurred after you had previously been let into the premises by your victim. To be clear, whilst this in no way justifies your behaviour, it distinguishes your offending from the more serious confrontational aggravated burglaries often seen in these courts.
[1](2012) 37 VR 658.
21Furthermore, I regard your actions in assaulting Mr Lord upon forcing your way into his home to constitute a concerning example of the crime of common law assault. Your actions involved separate criminality to that involved in your forced entry to the premises. Your victim was vulnerable for the reasons I have explained. Whilst, thankfully, the physical consequences of your actions were not as serious as they perhaps could have been, Mr Lord was very distressed and required treatment by paramedics at the scene.
Personal Circumstances
22You are a 34-year-old Barkindji man, having been born in Mildura. You are the youngest of five, with three older sisters and one older brother. Your parents separated when you were very young and your mother re-partnered, with both your mother and stepfather, whom you regard as your father, raising you.
23You have been educated to Year 9 level, reporting difficulties throughout with regards to literacy and numeracy. You have reported having been diagnosed with Attention Deficit Disorder (ADD) at the age of eight or nine. Due to your educational difficulties, you have reported very little in the way of paid employment history, save for some short-term farm work.
24You have reported a concerning drug and alcohol history. You started drinking alcohol at about the age of 13. At about the age of 12, you were introduced to cannabis by friends who were considerably older than you. Your use of cannabis fairly quickly increased to a daily habit, which continued until your adult years.
25You have reported to psychologist, Warren Simmons in 2013, that your amphetamine use commenced when you were aged 14, when you began smoking the drug every week after being introduced to it by a friend. Again, your use of amphetamines continued into your adult years and, at its peak, you were using two grams a day. From the age of 18, you were introduced to heroin by someone you knew, and you quickly became dependent on this substance, continuing to use heroin for some time. Your use of methamphetamines began when you were aged 15, and you have reported that you began using this substance daily. According to Mr Simmons,[2] 'It would seem that this drug has been a large part of Mr Yates’ life since he commenced using it'.
[2]Psychological Report of Mr Warren Simmons dated 25 June 2021, page 3.
26You have also had experience with, and abuse of, other substances, including inhaling glue, and experimenting with Ecstasy, Valium and Oxycontin.
27In terms of your relationship history, from the age of 14, you commenced an intimate relationship with a female neighbour of a similar age, and that relationship continued for some time. You have two daughters together, now aged approximately 12 and 10.
28You have a criminal history, both in Victoria and New South Wales, which is both considerable and concerning. Amongst others, you have prior convictions for assault, contravene family violence order, various dishonesty offending, bail offending, and threat to inflict serious injury from July 2016, which relates to a threat to stab a prison officer whilst in custody, for which you received a short term of imprisonment. Concerningly, in 2013, you were sentenced to five years’ imprisonment with a non-parole period of two years and six months for the offence of rape. The following year, you were sentenced to three years’ imprisonment, with two years concurrent with the rape sentence, for the offence of armed robbery. I was provided with the reasons for sentence with regards to those two sentences and I have read and considered them.
29At the time of the offending for which you now fall to be sentenced, you were subject to an eight-month adjourned undertaking imposed on 2 July 2020 at Mildura Magistrates’ Court for various offences. You were also subject to a nine-month intensive correction order imposed on 21 January 2020 from Broken Hill Local Court in New South Wales.
30Your concerning criminal history accentuates the need for any sentence now imposed to reflect the sentencing purpose of specific deterrence, as previous criminal sanctions have not prevented you from offending, and the sentencing purpose of community protection. Your criminal history also bears upon any consideration of your prospects of rehabilitation.
31In 2013, at the age of 25, you were psychologically assessed by psychologist, Warren Simmons, and his report dated 25 June 2013 (Exhibit A) was tendered at your plea hearing. Your reported history and presentation at that point was consistent, in the view of Mr Simmons, with intellectual difficulties. Upon testing, your composite IQ score was 55, a score at the 0.1 percentile, meaning that 99.9 per cent of people would do better than you. Your verbal skills for intelligence were assessed to be in the borderline average, while your non-verbal and total score placed you in the disabled range of intellectual functioning. Overall, your presentation was consistent with diminished cognitive functioning, with particular deficiencies in executive functioning.
32For the purposes of this plea hearing, you were assessed by forensic psychologist, David Ball, and two reports from Mr Ball dated 7 April 2021 (Exhibit B) and 28 April 2021 (Exhibit C) were tendered at your plea hearing. According to Mr Ball in his earlier report, you presented with an intellectual impairment, being illiterate and innumerate. You presented as a person with significant impairment in your capacity to exercise good judgement and to plan and execute positive and self-sustaining behaviours. You presented as 'a low functioning individual with an intellectual disability, living on the fringes of the community'.[3]
[3]Psychological Report of Mr David Ball dated 7 April 2021, page 3.
33In his later report, Mr Ball referred to your intellectual disability as being severe. Further on this issue, I note that in the course of receiving documents from the Department of Families, Fairness and Housing with regard to consideration of a Justice Plan, you were declared as having an intellectual disability within the meaning of the Disability Act 2006 on 19 December 2002, at the age of 14.
Your Level of Responsibility and Culpability for the Offending
34Your counsel submitted that your culpability for your offending was reduced in accordance with the well-known Bugmy principles, due to what was described as your 'social disadvantage'. This included your exposure to illicit substances from a young age. Pursuant to the Bugmy principles, an offender’s deprived background can warrant a reduction in moral culpability and the application of general deterrence. Notwithstanding an offender’s criminal history, a personal history of childhood deprivation and abuse remains a feature of one’s make-up and is relevant to the determination of the appropriate sentence in any given case. A history of profound dysfunction, disadvantage and abuse is therefore relevant to an evaluation of moral culpability. These background experiences play a significant role in shaping one’s personality and behavioural responses. As a consequence, one’s subjective culpability for the offending cannot be equated with that of a person who committed the same offending but had the advantage of a normal, stable and regular home environment during the formative years. In this way, a deprived background is an important mitigating circumstance in the determination of an appropriate sentence.[4]
[4]Bugmy v The Queen (2013) 249 CLR 571; DPP v Drake [2019] VSCA 293 at [32].
35Having considered your background and personal circumstances with regard to the Bugmy principles, I do not find that your upbringing was particularly deprived, disadvantaged or traumatic. Notwithstanding your Aboriginality, it seems that you were raised in a relatively supportive environment, albeit with educational challenges. There is an absence in your case of the indicia of profound disadvantage and trauma commonly associated with Bugmy considerations. However, it is clear that your introduction to illicit drug use from a very early age has clearly impacted upon your general behaviour, including criminal behaviour. Your introduction to drugs pre-dated an age where such behaviour could realistically be considered an informed, and in that sense, ‘voluntary’ decision on your part.
36It is clear from the report of Mr Ball dated 7 April 2021, that your offending occurred in the context of being drug affected. You informed Mr Ball that you had ingested two grams of Ice per day in the timeframe of the offending, and you had been awake for some four days preceding the incident. You also referred to your need for cannabis in your police interview.
37It is also clear from the two documents from the Mallee District Aboriginal Services (MDAS) dated 9 September 2020 (Exhibit D), and the second report being undated but presumably from mid-2020 (Exhibit E), that in the months preceding the offending you had been working with MDAS in relation to various drug and alcohol and mental health-related issues. I am satisfied, in all the circumstances, that your drug addiction contributed to your offending and that, in the circumstances where the genesis of your addiction dates from when you were a child, a mitigatory allowance is warranted, consistent with authority in this State, with regard to your culpability for the reasons I have articulated.
38Furthermore, given your intellectual disability and clear cognitive impairments, as described by Mr Simmons and Mr Ball, I am also satisfied that your moral culpability for the offending is reduced pursuant to principle one of R v Verdins,[5] a well-known authority dealing with the impact of mental impairment on sentencing.
[5](2007) 16 VR 269.
39According to Mr Ball in his report dated 28 April 2021:
'The consequence of [your] intellectual disability is that [your] capacity for appropriate judgment was impaired at the time of [your] offending and will most likely continue to be a permanent and lifelong impairment. [Your] disability also means that [you] suffer a constricted range of coping strategies and abilities further impairing [your] ability to make calm and rational choices.”[6]
[6]Psychological Report of Mr David Ball dated 28 April 2021, page 1.
Relevant Sentencing Factors
40I am required, pursuant to the Sentencing Act 1991, to take into account various factors when formulating an appropriate sentence in your case. I have already referred to the maximum penalties, the nature and gravity of your offending, your previous character and your level of culpability for your offending. I now turn to other factors.
41Having been charged on 7 September 2020, your matter resolved at a Committal Mention on 24 November 2020, with a plea of guilty indicated through the straight hand-up brief procedure. I am satisfied, in these circumstances, that your plea of guilty can properly be regarded as being at the earliest reasonable opportunity. Your plea has real and significant utilitarian benefit. Your vulnerable victim was saved the ordeal of being required to give evidence and be subject to cross-examination at committal and trial. Your plea reflects your acceptance of responsibility for the offending, and through your early plea you have facilitated the course of justice and obviated the need for a criminal trial.
42Particularly in the current environment, given the unprecedented challenges to the administration of criminal justice in this State brought about by the scourge of COVID-19, the utilitarian value of your plea has an additional layer of utility, given the disruption to criminal trials and inordinate delays, such that any discount should be real and palpable.[7] A significant mitigatory allowance is therefore warranted.
[7] Worboyes v The Queen [2021] VSCA 169 at [35].
43In written submissions, the prosecution in this matter submitted that notwithstanding your plea of guilty, there is limited evidence in this case of remorse. Indeed, in neither written nor oral submissions did your counsel make submissions with regard to remorse.
44Mr Ball’s earlier report dated 7 April 2021 makes reference to your vague expression of remorse. I accept that your early plea of guilty in and of itself can be reflective of remorse and, in the context of your intellectual disability, and noting this reference by Mr Ball, I am prepared to make a very modest mitigatory allowance for your remorse.
45You have now been in custody in relation to this matter for 329 days. You have, accordingly, been in custody in the context of the COVID-19 pandemic, which has had significant impacts upon the custodial setting. For significant periods, there have been prohibitions on personal visits. Access to employment, activities and therapeutic programs has been heavily impacted. All prisoners have had to live with the ongoing anxieties associated with the introduction of COVID-19 into the prison system, given the compromised demographic.
46In your case, you have spent much of your time in protection following on from your 2013 prior conviction and a previous assault in custody, which has no doubt impeded your access to services and other prison programs, and has accentuated your feelings of isolation. You also suffer from Type 2 insulin dependent Diabetes, requiring regular injections. I accept that this medical condition, combined with your Aboriginality, means that you represent a particularly vulnerable demographic in the context of the COVID-19 pandemic.
47I was informed and accept that your contact with your family has been limited to telephone calls, and that you have been unable to speak with your two daughters since being incarcerated. I accept that all of this means that your time in custody has been particularly onerous, and a mitigatory sentencing allowance is therefore warranted.
48In formulating an appropriate sentence in your case, I have also had regard to current sentencing practices, particularly with regard to the serious offence of aggravated burglary. Sentences for aggravated burglary commonly attract significant sentences of imprisonment.
49I have also considered the issue of parity, or disparity in your case. As I earlier explained, your co-offender received a short jail sentence for his role in the incident involving Mr Lord. Given that Mr Sutherland’s matter proceeded in the summary jurisdiction with regard to a single charge of trespass, in the absence of any further information with regard to him, I regard his situation as being wholly distinct from yours.
Sentencing Purposes and Principles
50Given the nature of your offending, there is a need for any sentence to particularly reflect the sentencing purpose of general deterrence. Other members of the community must know that such serious criminal offending will attract significant punishment. Given your considerable criminal history, there is a need for any penalty to specifically deter you from re-offending, and there is a need for any sentence to reflect the important sentencing principle of community protection. Given your extensive criminal history and the nature of your offending, your prospects of rehabilitation which must be facilitated through sentencing, in my view, are relatively guarded.
51I accept by virtue of your intellectual disability, and consistent with the principles articulated in Verdins, that there should be some moderation in the applicability of general deterrence and specific deterrence in the formulation of an appropriate sentence in your case. Indeed, your intellectual disability is also relevant with regards to the type of sentence to be imposed, again in accordance with the Verdins principles.
52At your plea hearing on 30 April 2021, your counsel submitted that, in all the circumstances, a combination sentence involving a term of imprisonment followed by a Community Correction Order would be appropriate. In written submissions dated 30 April 2021, the prosecution then submitted that a custodial sentence with a non-parole period, or a combination sentence involving jail and a Community Correction Order with carefully tailored conditions, would be within range. On that day, I ordered an extended assessment as to your suitability for a Community Correction Order, together with relevant reports with regard to the consideration of a Justice Plan, given your intellectual disability. Those reports have now been made available.
53You have been found suitable for a Community Correction Order. The Extended Pre-Sentence Assessment report from the Department of Justice and Community Safety dated 28 July 2021 represents a detailed assessment by Corrections as to your background, the offending, risk level and treatment and supervision needs. I note in that report that you were able to articulate a degree of awareness of the impact of your offending on your victim, Mr Lord. On a positive note, you clearly enjoy positive and supportive relationships with siblings from your mother’s side of the family, including a sister who works with the Mallee District Aboriginal Services (MDAS), an organisation that is likely to be a key support for you in the community. Your parents also remain active in your life and, as I am informed, are very supportive of you. I also note that you are actively pursuing access arrangements with regards to your two children through the Family Court. Notwithstanding your stated intentions to do your best to comply with a Community Correction Order should it be imposed, I note the concerns of Corrections with regards to your ability to understand the requirements of a Community Correction Order, to effectively engage with the supervision process, and to access appropriate interventions, given your cognitive deficits. Of course, your cognitive deficits should not stand in the way of you being given the opportunity of undertaking a Community Correction Order – indeed, a carefully tailored Community Correction Order with a Justice Plan condition in light of your intellectual disability, with all of the associated supports and services targeted at this very issue, seems appropriate.
54The relevant documentation from the Department of Families, Fairness and Housing sets out your needs with regard to your intellectual disability and the parameters of any Justice Plan, should one be imposed. In that regard, I note in particular the availability of funding and services through the National Disability Insurance Scheme (NDIS), and the availability of appropriate referrals with regard to offender-specific treatment and alcohol and drug treatment services with associated mental health programs.
55Upon receipt of the reports that I have now described, your counsel provided further written submissions, urging me to adopt the recommendations and impose a combined sentence of imprisonment with a Community Correction Order. The prosecution also provided further written sentencing submissions in light of the reports, indicating that a combination sentence, with or without further time to be served in prison, would be within the range of reasonably available sentences.
56As I earlier indicated, Mr Yates, offending of this nature would commonly attract a significant sentence of imprisonment. However, in light of the unique constellation of factors present in this case, I am satisfied that a combination sentence involving a term of imprisonment followed by a carefully crafted Community Correction Order appropriately meets the various sentencing factors and principles in this case. However, in light of the gravity of your offending, together with your extensive criminal history, and the need in particular for any sentence to adequately reflect the sentencing purpose of denunciation of your conduct, I have determined that a further period of imprisonment, albeit moderate, is required before you are able to re-enter the community under the rigours of a Community Correction Order. The sentences I am about to impose reflect the serious and distinct criminality involved in the two charges to which you have pleaded guilty. However, in light of the combination sentence, I have not ordered cumulation between the two charges. Mr Yates, in relation to the charges on the indictment you are sentenced as follows.
57On Charge 1, Aggravated Burglary, you are convicted and sentenced to 15 months' imprisonment.
58On Charge 2, Common Law Assault, you are convicted and sentenced to five months' imprisonment. I order that this sentence be concurrent with the sentence imposed on Charge 1.
59In relation to the sentences of imprisonment, amounting to 15 months, I declare a period of 329 days has been served by way of pre-sentence detention, and I order that this period be administratively deducted from your sentence.
60On Charge 1, in addition to the sentence of imprisonment, I order that you undergo and complete a Community Correction Order. The Order will commence upon your release from prison, which I anticipate to be in approximately four months' time. The Order will operate for a period of two years. In addition to the core conditions, there will be a number of additional conditions.
61The core conditions are that you must not commit any other offence punishable by imprisonment during the two years. You must comply with any and all obligations or requirements. You must report to and receive visits from Corrections. You must report to your local community corrections centre, which will be in Mildura, within two clear working days of the Order commencing. You must let a community corrections officer know within two working days of a change of address or job. You must not leave Victoria without first getting permission, and you must obey all lawful instructions from Corrections. They are all the mandatory core conditions that attach to any Community Correction Order.
62In addition to that, I am attaching a number of other conditions. They are that you be under the supervision of a community corrections officer for a period of two years. That you undergo assessment and treatment, including testing for drug abuse or dependency as directed. That you undergo any mental health assessment and treatment that may include psychological, neuropsychological, psychiatric or treatment in a hospital or a residential facility as directed, and that you must participate in the services specified in the Justice Plan for the period of two years.
63Pursuant to s6AAA of the Sentencing Act 1991, I declare that, had you pleaded not guilty but been found guilty of these offences at trial, I would have imposed a total effective sentence of four years' imprisonment with a non-parole period of three years.
64Mr Roper, can I confirm there are no ancillary orders sought in this matter?
65MR ROPER: Yes, Your Honour, there are no ancillary orders sought.
66HIS HONOUR: All right, thank you. Before I deal with the rigours of the Community Correction Order, whilst I have you there, Mr Roper, any issues or ambiguities with regard to the sentence?
67MR ROPER: No, Your Honour, that's fine.
68HIS HONOUR: All right, thank you. Mr Thomas, any ambiguities? Have I missed anything?
69MR THOMAS: That is all clear, Your Honour.
70HIS HONOUR: All right, thank you. Mr Thomas, what I am going to do, we have 15 minutes left on the video link, is I am just going to temporarily stand down for a few minutes to give you a chance to speak privately with Mr Yates. It is important that he understands what is involved in the Community Correction Order, and in particular not only the conditions but the consequences should he breach the Order; that is, should he not comply with any of the conditions without reasonable excuse, should he commit an offence punishable by jail he can be dealt with for a breach. The breach charge itself can carry a jail sentence and, of course, one of the options on a breach hearing is that he be re-sentenced, so I need to satisfy myself that he understands all of that before we proceed with the Order. I am just going to stand down for a few minutes.
71MR THOMAS: Yes, Your Honour.
72HIS HONOUR: If you would not mind confirming with your client that he understands what is involved and then I will come back in a few minutes to complete the matter.
73MR THOMAS: Thank you, Your Honour.
74(At a later stage.)
75HIS HONOUR: Thank you. Mr Thomas, you have had a chance to speak with your client?
76MR THOMAS: Yes. Thank you, Your Honour, I am grateful for that time to speak with Mr Yates. I am satisfied that he understands the conditions of the Order and the consequences of a breach. He consents to that course.
77HIS HONOUR: Thank you very much. Mr Yates, you can see and hear me?
78OFFENDER: Yes.
79HIS HONOUR: Mr Yates, you have just heard your lawyer, Mr Thomas, tell me that he has had a chat to you about this Community Correction Order. Do you agree with that?
80OFFENDER: Yes, Your Honour.
81HIS HONOUR: It is very important that you understand. I know Mr Thomas has just explained this to you but it is very important that you understand you have got a little bit more time to go in prison, just a few months, before you are released on a pretty extensive, comprehensive Community Correction Order and there will be a lot of obligations and things that you are required to do and things that you are required not to do, and they include that you do what is asked of you by Corrections in terms of any drug testing or counselling, any mental health assessments. Also, very, very importantly, to comply with aspects of what is called a Justice Plan.
82Now a Justice Plan is a program, so to speak, that focuses on your intellectual disability and services to do with that. Do you understand that, Mr Yates? There are a number of obligations that your lawyer, Mr Thomas, has just explained to you?
83OFFENDER: Yes, Your Honour.
84HIS HONOUR: It is very important that you basically do what you are told, because if you do not, or if you reoffend, you will inevitably come back before me for a breach of the Order and there can be very significant consequences for that, including possibly further jail time, and I am sure once you get out of jail you want to stay out of jail, don't you?
85OFFENDER: Yes, Your Honour, I do.
86HIS HONOUR: If you fall into any difficulties you need to keep in touch with your lawyers. There are options under the Sentencing Act to vary the Order or even suspend the Order if the circumstances require it, but please keep in touch with those that are trying to help you, all right?
87OFFENDER: Yes, Your Honour.
88HIS HONOUR: Thank you very much. The Order itself will be sent electronically through to Hopkins for signing, Mr Yates, and then it will come back and I will sign it and then ultimately you will get a copy of it, as will you, Mr Thomas, for your records and the prosecution. Anything else, Mr Roper?
89MR ROPER: No, Your Honour.
90HIS HONOUR: Mr Thomas?
91MR THOMAS: No, Your Honour.
92HIS HONOUR: Thank you to Mr Jackson, the author of the pre-sentence report, and also to Ms Arnold for the reports and also being present for the hearing today in case any issues arose. Thank you very much.
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